The Royal Court of Guernsey may be easier to access from London than Manchester (a 40-minute flight is often cheaper and quicker than the train), but it is a different jurisdiction with its own customs and traditions. Though rooted in customary Norman law, its modern day influences are essentially English – the rules of civil procedure are based upon the old White Book, to which frequent reference is made. Recent judicial pronouncements have also recognised the legitimacy of referring to the civil procedure rules (CPR). To the English lawyer, therefore, litigating in Guernsey will be familiar, but still different.
Advocates: a fused profession
For one thing, you need a Guernsey advocate to commence proceedings. Only advocates of the Royal Court have the right to sign a summons commencing proceedings, and only advocates have rights of audience before the Royal Court or the Guernsey Court of Appeal. The legal profession in Guernsey is fused so that an advocate fulfils the roles of both solicitor and barrister. However, given the complexity and high value of some of the litigation that the Royal Court deals with, it is not unusual to see ranged behind the Guernsey advocate a team of London solicitors giving instructions in much the same way as in the Royal Courts of Justice. On some occasions, the team will include an English barrister.
Inevitably, given the sort of litigation that Guernsey has begun to specialise in, certain local advocates find themselves developing a niche in high-value financial services work.
Ten years ago, Guernsey's insolvency law had not really developed much beyond consideration of local enforcement mechanisms such as saisie and désastre. Now – not least because of the change in market conditions – such expertise has become critical.
The cost of litigating in Guernsey equates to that of a medium-sized London firm, and may be even lower because of the savings attributable to a fused profession. Costs on a recoverable basis are in the region of 60 per cent of their full value for the winning party, although there is no summary assessment procedure. There is jurisdiction to make indemnity and wasted costs orders, although this is exercised no more frequently than in England.
The Bar's professional conduct rules outlaw conditional or contingency fee arrangements. A number of firms do pro bono work, but the costs situation is similar to that which prevailed in the UK before the Woolf reforms and relevant conditional fees legislation.
Judges and courts
The Royal Court has two permanent judges, a bailiff, a deputy bailiff and a number of lieutenant bailiffs. It is fair to say that the resources attributed to the Royal Court have not grown at the same rate as the work that it has had to service. Plans are afoot for a new Royal Court building, but it may also be necessary to consider appointing a greater number of judges. In recognition of this, a number of particularly complex pieces of litigation in recent years have seen the Royal Court appoint English QCs as lieutenant bailiffs in order to deal with particular matters. Such ad-hoc judges, though, can only be a short-term measure, and the appointment of more full-time, high-quality judiciary is inevitable.
Decisions from the Royal Court are appealed to the Guernsey Court of Appeal. The bench of the Court of Appeal is perhaps one of the most august judicial bodies in the English legal world. English QCs such as Jonathan Sumption, John Nutting, Christopher Clarke, Elizabeth Gloster, Michael Beloff and others appear regularly at the quarterly Court of Appeal hearings.
There is a further appeal from the Court of Appeal to the Privy Counsel, but perhaps because of the quality of justice administered by the Court of Appeal such appeals are extremely rare.
The last year has been particularly busy for the Royal Court. There have been a number of multimillion-pound litigation cases concerning, for example, a joint venture in metals trading, a shareholders' dispute concerning the controlling interest of a foreign telecoms company and a number of other shareholders' disputes arising out of the dissolution or failure of certain biotech or dotcom companies, particularly where the investment fund was incorporated in Guernsey.
Guernsey's traditional predominance in investment funds has led to greater expertise on the litigation side in dealing with the dissolution and liquidation of those funds. The recent change in economic climate has tested the limits of various pieces of Guernsey's legislation, in particular concerning the effectiveness of the Security Interests Law. Lawyers have been working hard to resolve the various tensions between such legislation and the liquidator's jurisdiction as an officer of the Royal Court.
Human rights legislation came on to the statute books in Guernsey last year. It is not yet in force, although it is anticipated that enabling legislation will be brought forward some time during 2003. In the meantime, however, a number of cases have been brought forward based on human rights arguments.
In a landmark decision, Patrick Talbot QC (one of the ad hoc lieutenant bailiffs already referred to) held that, although the legislation was not yet in force, public authorities remained bound to take account of and give effect to their obligations under it. Plainly, this has had a significant impact upon the way in which public bodies conduct themselves.
Guernsey's other traditional strength has been in the management of private wealth and trust structures. The landmark decision of Hutcheson v Spread Trustees concerning the depth and breadth of information available to the beneficiaries of settlements was handed down by the Court of Appeal earlier this year and represents an important clarification of such information rights under the Trusts Law. Again, St John Robilliard of Ozannes appeared for Hutcheson, whose claim for greater information was upheld before the Court of Appeal.
The last year has been exceptionally busy for Guernsey litigators. All of the firms continue to grow and Ozannes will appoint four new partners in January 2003, three of whom will be litigators. This is not reflective of a jurisdiction following the US in terms of frivolous litigation. Indeed, without conditional or contingency fee arrangements, such proliferation is highly unlikely.
Rather, the increase in litigation is perhaps reflective of the state of the economy in the period following 11 September and the traditional counter-cyclical pick-up in contentious matters. It is perhaps also indicative of a mature jurisdiction with the resources and expertise to deal with such issues.
Robert Shepherd is a litigation solicitor at Ozannes